Hand over the ballet slippers — ‘Frequent flyer’ parents tie up family courts with trivia

Recently, the New York Times reported about a case in U.S. family court where separated parents asked the judge to decide whether their child should be allowed play football, as the parents could not agree. The father said the risk of concussion was too great; the mother said their son understood the risks and wanted to play.

The family bar in Canada is used to dealing with parents’ disputes about extra-curricular activities. Particularly antagonistic parents who repeatedly appear in court are sometimes called “frequent flyers.”

While frequent flyers may have significant issues, often they take up valuable court time over minutiae, such as one parent’s refusal to return ballet slippers. These disputes reduce available court time for more consequential issues like parental abuse or the alienation of a child by one parent.

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In Canada, custody can be “sole” or “joint.” The difference between the two has nothing to do with the amount of time a child spends with each separated parent. Sole custody means that one parent is legally entitled to make all of the major decisions about a child’s education, health care and religious upbringing. Joint custody means that separated parents must agree on those issues. Decisions about a child’s extracurricular activities are generally considered to be an educational decision.

For some separated parents — even those who are not frequent flyers — a joint custody arrangement can be fraught with conflict.

Sole custody is not necessarily the panacea to reducing conflict. Even if one parent has sole custody, if that parent wants a monetary contribution from the other parent to pay for the activity, consent is required. And generally, the more expensive the extracurricular activity in proportion to the means of the parents or the more dangerous the activity, the greater the risk of disagreement between the parties.

So how is a decision made when a couple disagrees about whether Sasha should play elite hockey or Zoe should have her own horse? In Canada, there is a developing niche profession of people who will resolve these disputes — at a cost, of course.

Enter the parenting co-ordinator.

A parenting co-ordinator (known as a “PC” in the family law world) is person who will mediate and/or decide your parenting dispute — but only within the four corners of the PC agreement which the parents sign. The PC is often a mental health professional or a family lawyer. Depending on the province in which they work, the PC will usually have to adhere to certain rules or a code of conduct. The agreement signed by the parents may allow the PC to decide issues such as which camp Clayton will attend, but not whether there should be a change to the joint custody arrangement.

Separated parents with joint custody who have frequent child-related disputes often agree to appoint a PC. Having one decision-maker appointed by the parents who is prepared to resolve some issues by phone and without filing volumes of documents is cheaper, more convenient and faster than starting a court proceeding.

As family court litigation can be used as a weapon by the more wealthy parent, the monied spouse will sometimes refuse to appoint a PC for tactical reasons, and courts cannot prevent family litigants from bringing motions about the minutiae of separated parenting. Judges are obliged to deal with the dispute, no matter how minor. As children change and grow older, new types of disputes are born. Judges have few ways to discourage frequent flyers, except for ordering that the unsuccessful parent pay costs.

So why can’t a family court judge simply appoint a parenting co-ordinator to deal with the warring parents?

In Ontario, there is no law which allows a court to delegate its decision-making function to a PC unless the parties agree.

Many judges have bemoaned this situation. In 2008, Justice Margaret Scott expressed her regret at being unable to order the appointment of a counsellor and a PC, saying “…when litigation has been so frequent, extended and ineffective to facilitate the best interests of the children, the court should have within its jurisdiction every device to require the parents to develop and maintain civil communication, self-discipline and a proportionate response to concerns related to the children’s health development and educational issues. “

In the 2016 case of Michelon v Ryder, Justice Marvin Kurz went even further, urging that “legislative change … be implemented to provide the court with this reliable, effective resource to assist parents in complex cases where the children’s best interests are at stake.”

But recognizing that legislative change comes slowly, Justice Kurz added this advice for conflictual parents: “This court urges parents who express such commitment to their children, to immediately retain a (parenting) co-ordinator with sufficient authority essential to assist them to stop repeating the failures of the past and to learn positive communication techniques that will advance the best interests of their children in the future.”

In some provinces like British Columbia, the Family Law Act specifically allows the court to appoint PCs. But in most other provinces, without an agreement, courts cannot do so. And often, those most in need of a PC are the parents most apt to refuse.

Recently, the federal Minister of Justice held meetings with stakeholders in the family justice system about changes to the Divorce Act — the legislation which governs custody, access and support issues for married spouses in Canada.

There is little doubt that children in conflictual separated families would benefit if our justice minister listened to the wise advice of Justice Kurz, and allowed judges across Canada to appoint “this reliable effective resource.”

Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.